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2018 (9) TMI 82 - HC - Central ExciseMaintainability of appeal u/s Section 35-G (2) of the Central Excise Act, 1944 - issue involved is determination of any question having relation to the rate of duty or excise or to the value of the goods for the purpose of assessment - whether the appeal shall lie under Section 35-L or under Section 35-G of the Central Excise Act, 1944 to the High Court? Held that - The appellant / department is permitted to withdraw this appeal and direct the department to assail the order by filing an appeal under Section 35-L of the Central Excise Act, 1944 before the Apex Court - reliance placed in the case of COMMISSIONER OF CENTRAL EXCISE, PANCHKULA VERSUS SPECIAL MACHINE 2009 (8) TMI 143 - PUNJAB AND HARYANA HIGH COURT , where it was held that the substantial questions of law raised in these appeals, which are stated to have been arising from the Tribunal, relates to determination of a question having relation to the rate of duty of excise, therefore, we are of the considered view that for determination of such question, remedy of appeal lies to Supreme Court under Section 35L. Appeal dismissed being not maintainable.
Issues:
1. Maintainability of the appeal under Section 35-G (2) of the Central Excise Act, 1944. 2. Jurisdiction of the High Court under Section 35-L of the Central Excise Act, 1944. Issue 1: Maintainability of the appeal under Section 35-G (2) of the Central Excise Act, 1944: The appeal was filed by the Revenue against an order passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi. The learned counsel for the respondent raised a preliminary objection regarding the maintainability of the appeal. It was argued that the appeal shall lie against an order passed by the Tribunal only if it does not relate to the determination of any question regarding the rate of duty or excise or the value of goods for assessment. Reference was made to various decisions, including one from the Gujarat High Court, to support the argument that such appeals should be directed to the Apex Court under Section 35-L of the Act. After considering the facts and precedents cited, the High Court permitted the appellant to withdraw the appeal and directed the department to file an appeal under Section 35-L of the Act before the Apex Court. Issue 2: Jurisdiction of the High Court under Section 35-L of the Central Excise Act, 1944: The High Court, after considering the facts and legal precedents cited by the respondent's counsel, directed the appellant to withdraw the appeal under Section 35-G (2) of the Act. The Court held that based on the controversies involved and the legal principles established in various cases, including Commissioner v. Kich Industries and Navin Chemicals Manufacturing and Trading Company Limited v. Collector of Customs, the appeal should be pursued under Section 35-L of the Act. The High Court disposed of the Central Excise Appeal No. 05/2015, emphasizing the need for the appellant to follow the appropriate legal procedure by filing an appeal under Section 35-L before the Apex Court for further adjudication. This judgment by the Madhya Pradesh High Court clarified the jurisdictional aspects of appeals under different sections of the Central Excise Act, 1944, highlighting the importance of following the correct legal procedures for appealing against orders of the Tribunal. The decision underscored the significance of aligning appeals with the specific provisions of the Act to ensure proper adjudication and resolution of disputes related to excise duty matters.
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